In Menard v The Centre for International Governance Innovation ( 2019 ONSC 858) Gray J. considered the validity of the following termination clause in a contract :
2.3 Termination of Employment. During the Term, the Employee’s employment may be terminated:
a) By the Employer,
i) For Just Cause at any time by the Employer without notice and without any payment in lieu of notice. “Just Cause” includes, without limitation, misconduct by the Employee, any breach or non-observance by the Employee of any of the conditions or obligations of this Agreement, any neglect or refusal by the Employee to carry out any the Employee’s responsibilities hereunder, any negligent performance of such responsibilities, and any insubordinate or insulting behaviour towards the Employer, its customers, donors, fellows, employees or contractors, the public or any other person, individual, entity or party in the habit or business of dealing with the Employer; or
ii) Without cause, upon providing the Employee with the minimum notice for the time employed as determined under the Employment Standards Act, 2000 (Ontario), as amended or replaced from time to time,
And the Employee specifically acknowledges and agrees to the above and hereby waives any claim to further notice or payment or compensation.
The Court reasoned that this clause was contrary to the ESA because as follows:
[105] In the case before me, the language is clearly of the type considered by the Court of Appeal in Wood. It sets up an entitlement to only the minimum notice under the Employment Standards Act, 2000, and thereafter specifically states that the employee “waives any claim to further notice or payment or compensation.” It is clear that statutory entitlements, such as severance pay and benefit continuation, are excluded. Thus, according to the reasoning of the Court of Appeal in Wood, the clause is void.
The judge went onto to find that reasonable notice was 12 months for a 55 year old VP Finance making $172,0000/ annum with 6 years service.